pany, to recover stock alleged to have Code, § 135. The effect of the service is not involved in the discussion. 2. The affidavit and complaint show that the subject of the action is personal property within the State, and the defendants claim an interest. James C. Carter, for applt. E. N. Taft, for respt. been fraudulently obtained from plaintiffs in accordance with a scheme or conspiracy between various of the defendants, including the powder companies, and also for the purpose of setting aside certain judgments alleged to have been collusively obtained against the U. S. Blasting Oil Company, and also for the Held, That the allegations of the purpose of setting aside certain assign-affidavit and the plaintiff's complaint in ments of valuable patents from the the action on which the order of publiBlasting Oil Company to the Atlantic cation was founded are to be deemed to Powder Company. Both the Powder Companies were non-resident corporations, existing under the laws of the State of California. The application for the order directing the publication of the summons was obtained upon the complaint, in the action, and upon an affidavit showing that after diligent inquiry, deponent has been unable to find the President, Secretary, Cashier, Treasurer, Directors, or Managing Agent of either of the said companies, defendants. And on information and belief, stated that the officers of both companies resided in the State of California. The following are some of the points urged by the appellants on the appeal. 1. That no court should assume the exercise of jurisdiction when it cannot make its decree effective. 2. That the relief sought in the present case is really in personam. The de cree could not be enforced upon any one; nor would it be regarded as a judicial determination in any other jurisdiction. be admitted for the purposes of this motion. That the appellants are proper and necessary parties to the action. The cause of action arose within this State. The judgment, the invalidity of which is asserted by the appellants, was recovered and entered in this State, and the transfer of the rights and franchises of the United States Oil Blasting Company is alleged to have been made within this State. The subject matter or corpus of the action is the title to the shares, rights and franchises of that Company as a New York corporation. Order of Special Term affirmed. Opinion by Davis, P. J.; Daniels and Brady, J.J., concurring. SUBROGATION. N. Y. COURT OF APPEALS. Cole, respt., v. Malcom, impl'd, &c. applt. Decided, June 6, 1876. The doctrine of subrogation is appli cable where a party is compelled to pay the debt of another to protect his own rights or to save his own property. (Reversing S. C. 7 Hun. 31; 2 N. Y. Weekly Dig. 454.) And on behalf of the respondent the following among other points were This is an appeal from an order of urged 1. That the order directing the General Term, affirming an order of publication must stand, because it is Special Term, denying a motion made. authorized under the provisions of the by defendant, M., to compel an assign ment to him of certain judgments | tled to be subrogated to all the rights held by one II. K. M., plaintiff's as- and securities of the judgment creditor. signee. 3 Paige, 117; 5 Id. 285; 11 Id.,21; It appeared that prior to December, 3 Barb. Ch. 169; 42 N. Y., 89; 6 Hun. 1869, defendant, C., owed plaintiff 632; 2 Brock., 159; 23 Penn. 294. $4,000. He at that time owned cer- The equitable doctrine of subrogatain land, which he conveyed through a tion is applicable to cases where a party third party to his wife without any con- is compelled to pay the debt of a third sideration, for the purpose of vesting p rson to protect his own rights, or to save his own property. 23 Penn. 294; 2 Brock. 159. the title in her. She died intestate, in 1870, leaving no children, and the land passed to her heirs, of whom the defendant, M., was one, and he has since, by purchase,succeeded to the rights of nearly all the others. Plaintiff commenced an action against C., after the death of his wife, and recovered judment for the amount of the debt due him, and issued exec:tion thereon, and had the same returned unsatisfied. He then commenced an action against C. and the heirs of his wife, to set aside the conveyance of the land as a fraud Also held, That as the title of the heirs of C.'s wife is good as against C., when they pay the judgments against him to save teir land they pay his debts, and they should have subrogation against him. Order of General and Special Terms reversed, and motion granted. Opinion by Earl, J. FRAUD. upon the creditors of C., and obtained N. Y. SUPREME COURT. GENERAL TERM FOURTH DEPARTMENT. Ephraim H. Fish and John L. Lent, applts., v. Willoughby Payne, respt. Decided April, 1876. A mere purchase of goods, unaccompanied by any fraudulent representations, is not of itself fraudulent, although the purchaser is insolvent at the time, and has knowledge of the fact. a judgment setting it aside, and declar- fused to assign. Defendant thereupon made this motion. John R. Dos Passos, for applt. Appeal by plaintiffs from a judgment the County Court, in favor of plainrendered in a justice's court. The action was brought by the plaintiffs against the defendant to recover damages for wrongfully and fraudulently obtaining goods to the value of $61.41, with the fraudulent intent and preconceived design not to pay the plaintiffs for the same, and with the wrongful intent to cheat and defraud Held, That defendant M. was enti- the plaintiffs of the same and the value thereof. The plaintiffs had judg ment in justice's court for the value of the goods and costs. On the 18th of November, 1872, William Brice & Co. filed their petition in the Common Pleas of Stark ant Trimble, to foreclose a mortgage given by said Sommers on twenty acres of land in Stark county, and on which they claimed $7,107.01. Defendant Trimble, in defense, claimed title to the premises by virtue of a sale to him by the United States Collector of the district for unpaid taxes which had been assessed against plaintiffs, defendant Sommers and others. under the internal revenue laws, they being engaged in the distillery business on the premises, and that such taxes were a superior lien to the mortgage. On the trial it appeared that the county, against Henry Sommers and plaintiffs during a period of two years others, among whom was the defendhad sold the defendant goods at different times, on a credit of thirty days; that the defendant was a peddler, engaged in selling goods bought of the plaintiffs, and had paid his bills to the plaintiffs up to the time of his last purchase of the plaintiffs, amounting to $61.41; he was insolvent, and had knowledge of the fact, but did not disclose his condition, although he received his usual credit of thirty days. L. J. Barrows, for applts. Charles St. Searles, for respt. Held, That it was not fraudulent in the defendant, although he was embar Plaintiffs replied and joined issue, rassed, to make any effort he could to which was found in favor the defendrelieve himself from his embarrassment. aut Trimble, at the February term, Instead of preconceiving a design to de- 1874, and a decree was entered dismisfraud and cheat, which nowhere ap- sing plaintiffs' petition. pears in the tes imony, his purchase appears to have been made in the ordinary business way. There was, therefore, no fraud committed by the defendant, and the judgment of the justice should have been for the defendant. Opinion by Noxon, J.; Mullin, P. J., and Smith, J., concurring. REMOVAL OF CAUSE FROM mers et al. Plaintiffs thereupon appealed to the District Court of Stark county. On the 30th of September, 1875, and whilst the cause was so pending, defendant Trimble filed this petition for removal to this court on the ground that the action affects the validity of the internal revenue laws of the United States. Plaintiffs now file their motion to dismiss the petition. 1. Because the case, prior to filing the petition, had been finally heard. and tried, and a final decree entered therein, and therefore this court has no jurisdiction. 2. Because of other manifest reasons apparent on the face of the proceedings. Held, That the application for re Decided May 20, 1876. The act of Congress only authorizes a removal where application therefor is made before final hearing or trial, and this means before final judg ment in the court of original juris-moval is too late. It was held in Stediction, venson v. Williams, 19 Wallace, 572, that a removal is only authorized where an application is made before final An application made after an appeal has been taken, is too late, judgment in the court of original jurisdiction where the suit is brought. This construction is supported by the phraseology of the section of the statute itself. It provides that where any civil action or suit is commenced, not pending, in a State court, &c. mere "If the above mentioned premises shall become vacant or unoccupied, and so remain with the knowlege of the as* * * without notice to or sured consent of this company in writing * this policy shall be void." * * These expressions of the act seem to refer alone to cases pending in the State court in which they were commenced. Any other construction would, in effect, make this an appellate court from the Court of Common Pleas, making the State District Court a At the time of the fire the premises highway to reach this court by way had been unoccupied for thirty-three of appeal. To reach this court parties days. Plaintiff knew of it, but gave could try the case in Common Pleas, no notice to the company. During that and on defeat appeal to the District time she was engaged in endeavoring Court, and while the case was there to procure a tenant for the house and had not abandoned it. pending, file the petition here for removal, and then retry the case in this court. Counsel for defendant Trimble claim ed that as two terms of the Circuit Court had been held after the filing of the transcript and pleadings and before the motion to dismiss was filed, it was too late to do it then. The court on the trial instructed the jury that the plaintiff was entitled to recover. Foster, J.-The condition in the policy is a peculiar one, and its meaning is somewhat obscure. Just what meaning was intended to be conveyed by the Held, That if plaintiffs had appeared words "and so remain," is not apparand pleaded in the case after such filing, ent, but it is certain that they qualify it might be regarded as a waiver of the the condition, and make it something right to make the motion, and an ad-more than a mere temporary vacancy, mission of the jurisdiction of this court; such as would occur while one tenant is but as they did not do so, the objection moving out and another moving in. is not well taken. Motion to dismiss sustained. Opinion by Welker, J. FIRE INSURANCE. U. S. CIRCUIT COURT-DISTRICT OF KANSAS. The vacancy or want of an occupant, of itself, however brief, is not enough to avoid the policy, but the vacancy must remain so. It must be either an abandonment of the premises as tenantable property, or the vacancy must have continued an unreasonable time. When there is doubt in the condition restricting the liability of the company, the construction most beneficial to the premises should be adopted. 32 N. Y. 405. Ann Kelly v. Home Insurance Company of New York. (June, 1875.) A condition in a policy that if the premises shall become vacant or unoccupied and so remain with the knowledge of the assured, without notice to and consent of the company in writing, the policy should be void, its liability. In this case, whichever construction we adopt in interpreting the policy, I cannot see that the company can avoid If it contemplates an abandonment selling, exchanging, and building upon of the premises, this is not such a case, for there was no abandonment. If its liability was to terminate on the the vacancy continuing an unreasonable length of time, then I could not hold that an unreasonable time had transpired. If the company desired to limit the time of its liability to thirty days, it was very easy for them to have expressed it in plain and unmistakable language. Motion overruled. the property, he increased its value so that it is now worth $20,000. She did no more than contribute $3,000 towards the purchase money, and consult with him in regard to the property; or, in her own words, she did such things "as it was necessary and proper for a lady to do." When the husband filed his petition in bankruptcy, two years after the last purchase, his schedule was barren of any available assets. Held, That when the title to real es BANKRUPTCY. RIGHT OF AS-tate is conveyed to a married woman, SIGNEE TO PROPERTY PUR- Muirhead, assignee, &c., applt., v. Thomas Aldridge and Annie Aldridge his wife, respts. she must be considered a bona fide owner of it, the same as if she were a fem me sole. But it must be entrenched in good faith. If it is purchased by her or for her, no matter by whom, its validity cannot and ought not to be questioned. But if she has no sepaDecided March 28, 1876. rate estate, or one disproportionately An assignee in bankruptcy is entitled small, as compared with the considerato property which has been purchas- tion ostensibly paid by her, and deficiened in the name of the bankrupt's cies are supplied from resources, whethwife, where it is shown that the wife er money or its equivalent, of her huscontributed but little towards its purchase, and the husband has increased band, which he could not rightfully apits value by his own time and labor. ply, such a transaction does not deserve A debtor cannot deprive his creditors any legal sanction. of the product of his labor, by putting it in the form of property only nominally acquired by his wife. This bill was filed by the assignee in bankruptcy of the defendant, Thomas Aldridge, to obtain a conveyance to him, as such assignee, of certain real estate, therein described, the title to which is in his wife's name; but which it is claimed, in truth belongs to him. Defendan's set up that the property in question was acquired and conveyed to the wife during coverture, and that it is her separate property. During nine years, twenty-one pieces of real estate were purchased for and conveyed to the wife. The husband took entire charge of the estate, and by Also held, That while a debtor can not be compelled to labor for his creditors, he cannot divert the product of his labor to his own benefit, by putting it in the form of property only nominally acquired by the wife; and that where his nominal agency for the wife. is used as a device to cover his acquisitions, under the name of his wife, it will prove unavailing. Also held, That the real estate in question is really the property of the husband; that the title to it was vested in the wife in fraud of creditors; and that a decree should be entered for its conveyance, in accordance with the prayer of the bill. Opinion by McKennan, Cir. J. |